Citizenship worthy of more than luck
The question is not whether some should be denied the right of citizenship by birth. The question is why any of us should be entitled to it.
Reaction to the motion passed at last week’s Conservative convention calling for the elimination of birthright citizenship — the principle, enshrined in Canadian law, that anyone born on Canadian soil is automatically a citizen for life — unless at least one of the child’s parents is a Canadian citizen or permanent resident, was unusually, if predictably, heated. The prime minister’s principal secretary, Gerald Butts, publicly accused the Tories of plotting to strip people born in Canada of their citizenship (nothing in the motion implied retroactivity), while the leader of the NDP, Jagmeet Singh, denounced the party for peddling “division and hate.”
All this for a motion that both sides agree is of little practical consequence. If passed into law, it would affect perhaps one child in a thousand: the number of “birth tourists,” foreign nationals who come to Canada just long enough to give birth to a Canadian child, is so small as to be hardly worth the trouble and expense of prohibiting it. (Among other headaches: a birth certificate would no longer suffice to confirm citizenship. You’d either have to hand out a second set of proof-of-citizenship cards or reissue everyone with updated birth certificates.)
And yet the proposed new rule is not unheard of, or especially offensive. Canada and the U.S. are in fact unusual among developed countries in granting citizenship at birth. Everywhere else outside the New World attaches some blood requirement. To be sure, the proposal looks like overkill: there are simpler ways to crack down on birth tourism, so far as it is a problem, without the risk of making the children in question — many born of permanent residents, refugee claimants and others with a legitimate reason to be here — stateless. But “division and hate”? Come on.
It’s odd seeing progressives clasping birthright citizenship to their bosoms, as it is scarcely more defensible in moral terms than blood citizenship. Though commonly painted as opposites — jus soli vs jus sanguinis, to use the Roman legal terms everyone takes care to trot out at some point in these pieces — they are in fact more alike as doctrines of inherited privilege, with all of the arbitrariness that implies. One asks who your parents were, the other where you were born, but both assign the right to citizenship based on nothing so much as the accident of birth.
Each gives rise to its own anomalies. Until comparatively recently, German law held that no one could become a citizen who was not of German blood, even if they and their forebears had been living in the country for generations. By contrast, it is enough in Canadian law to have been here for one day — your birthday — to be a citizen in perpetuity, even if you spend the rest of your life abroad. Stranger still, your children, though they never set foot in the country, will also automatically be citizens (as, until the last Conservative government changed the law, were their children, and theirs, and so on): our system combines jus soli with jus sanguinis.
This is remarkably unfair, when you think about it. We talk a lot of white privilege or male privilege, but the biggest single advantage anyone can have, the advantage we all share, is to live in Canada. The worst-off among us has a better shot at a decent life than all but a minority of the population in many countries. Yet this crucial determinant of life chances is itself allotted more or less by chance — The Birthright Lottery, to quote the title of University of Toronto law professor Ayelet Shachar’s 2009 book. Born here: you’re in, as of right. Arrive here the day after you’re born: tough beans. Join the queue with the rest.
Life’s unfair, but we do not usually look to government to make it still less fair. I did nothing whatever to earn my citizenship, or the advantages that go with it. I didn’t pick my parents. Neither did I pass a test or meet any of the other requirements we impose on those born elsewhere who wish to become citizens (those we allow even to apply). I just got lucky. Yet the principle that citizenship, membership in the polity, should be assigned on the basis of heredity, whether of the blood or soil variety, remains all but unquestioned — largely, one suspects, because it suits us.
What’s the alternative? Shachar proposes an addition to the list of Latinate terms: jus nexi, or the principle of “genuine connection.” Rather than bloodlines, birthplace or other abstraction, the test of citizenship would be “the social fact of attachment,” the substantive ties to Canadian society you had acquired — by living here for some time, obeying the laws, participating in the community and otherwise abiding by the social contract.
Something similar already applies to would-be naturalized citizens, who must, for example, show that they have been resident in Canada for three of the last five years. This would simply be to make the exception the norm. Canadian parentage or birthplace would no longer be required, but neither would it be enough. By contrast, genuine connection would be both, the necessary and sufficient condition of citizenship.
Don’t worry. It’s unlikely this would ever be implemented, and if it were existing citizens would undoubtedly be, you should pardon the expression, grandfathered. But it’s worth at least thinking about the arbitrariness of our own claim to citizenship, if for no other reason than to temper our views of those seeking to join us. Were we more aware of our own extraordinary good fortune — our lottery win — we might feel more obliged to share it with others.
I DID NOTHING WHATEVER TO EARN MY CITIZENSHIP.